Piper v Hookham Constructions Pty Ltd - [2015] QCATA 77

CITATION:

Piper v Hookham Constructions Pty Ltd [2015] QCATA 77

PARTIES:	Darryl Piper (Appellant)
v
Hookham Constructions Pty Ltd (Respondent)

APPLICATION NUMBER:

APL277-14

MATTER TYPE:

Appeals

HEARING DATE:

13 March 2015

HEARD AT:

Brisbane

DECISION OF:

Justice Thomas, President
Acting Senior Member Browne

DELIVERED ON:

12 June 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Application to adduce further evidence is refused.

2. Appeal allowed.

3. The decision of the Tribunal made on 21 May 2014 is set aside and the matter is to be returned to the tribunal for reconsideration according to law and the findings disclosed in these reasons for judgment.

CATCHWORDS:

APPEAL – BUILDING DISPUTE – QUESTIONS OF LAW – where contract for the construction of units – where contract provided an amount for delay damages – where change to the building works – where Tribunal found time for completion was extended by agreement – whether grounds to appeal

Domestic Building Contracts Act 2000 (Qld) s 18, s 79, s 80, s 81, s 82 s 84
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 146, s 147

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404; cited
Ellis & Anor v Queensland Building Services Authority [2010] QCATA 93; cited
Pickering v McArthur [2005] QCA 294; cited
Piper v Hookham Constructions Pty Ltd [2014] QCAT 215; cited
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; cited

REPRESENTATIVES:

APPLICANT:

Mr Piper represented by Mr S Hatfield, Solicitor of Skelton Law

RESPONDENT:

Hookham Constructions Pty Ltd represented by Mr R Gordon of legal counsel instructed by Aitken Whyte Lawyers

REASONS FOR DECISION

Mr Piper had plans to demolish the house he was living in and construct three units on the land. He engaged Hookham Constructions Pty Ltd (the builder) and signed a contract not long before building commenced on 13 May 2011.
There was a provision in the contract for late completion damages. This meant that the builder had to pay Mr Piper money if the works were delayed in certain circumstances.
After the building work was completed, the builder sent an invoice to Mr Piper for final payment. Mr Piper did not pay the invoice because he said that there was an amount owing to him for late completion damages.
Mr Piper filed an application in the Tribunal seeking an order that the builder pay late completion damages.[1] The builder disputed Mr Piper’s application and filed a counter-claim.[2]
[1]The application for domestic building dispute filed on 15 May 2013. Mr Piper claims $87,278.12 for ‘loss and damage in the sum of $76,000.00 being late completion of damages pursuant to item 11 of the Contract, at $200.00 per day from the practical completion date of 6 February 2012 to the actual date of practical completion of 20 February 2013, being 380 days’. See attachment to the application, p 2.
[2]Response and counter-application filed 4 July 2013. The builder claims $87,278 for the final payment plus $4,750.00…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Piper v Hookham Constructions Pty Ltd

Details

AGLC: Piper v Hookham Constructions Pty Ltd [2015] QCATA 77
Case: [2015] QCATA 77
Decision Date: 12 June 2015

CaseChat Overview and Summary

Piper, the applicant, sought to appeal a decision of the Building and Construction Commission Dispute Resolution Tribunal, made by Hookham Constructions Pty Ltd, the respondent. The dispute arose from a contract for the construction of residential units. The contract stipulated a specific amount for delay damages, however, there was a change to the building works which led to delays. The Tribunal found that the time for completion was extended by agreement and dismissed Piper's claims. Piper appealed the Tribunal's decision, seeking to challenge its findings.

The primary legal issue in the appeal was whether there were grounds to set aside the Tribunal's decision. The appeal hinged on whether the Tribunal erred in its interpretation of the contract and the extension of the completion time by agreement. Piper argued that the Tribunal failed to consider the delay damages clause and the effect of the change to the building works on the agreed extension of time. Hookham Constructions maintained that the Tribunal's findings were correct and that there were no grounds for appeal.

In considering the appeal, the court examined the terms of the contract and the evidence presented to the Tribunal. The court found that the Tribunal did not adequately address the delay damages clause and the impact of the change to the building works on the extension of the completion time. The court held that the Tribunal's failure to consider these matters constituted an error of law, leading to an unjust outcome. Consequently, the court allowed the appeal, set aside the Tribunal's decision, and remitted the matter back to the Tribunal for reconsideration in light of the court's findings.

The court's orders included the refusal of Piper's application to adduce further evidence, the allowance of the appeal, and the setting aside of the Tribunal's decision made on 21 May 2014. The matter was to be returned to the Tribunal for reconsideration according to law, with the court's findings taken into account. This decision underscores the importance of tribunals thoroughly examining the contractual terms and the impact of changes to building works on the agreed timelines, particularly in relation to delay damages clauses.

Orders

Orders of the court

1. Application to adduce further evidence is refused.

2. Appeal allowed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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